Ferola v. SC Dept of Corrections et al
ORDER adopting in part Report and Recommendations ; granting in part and denying in part 48 Motion to Dismiss; granting in part and denying in part 28 Motion to Dismiss. The Court DISMISSES Defendants Washington and McK ie from this case. Defendants McCall, Cohen, Paterson, and Mervin remain as defendants in this case. The Court recommits this case to the Magistrate Judgefor further pretrial handling. Signed by Honorable R Bryan Harwell on 2/7/2017.(cwhi, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Michael J. Ferola,
Michael McCall, Levern Cohen,
Sgt. Michael Washington, Dennis )
Paterson, D. Mervin, and Bernard
Civil Action No.: 9:16-cv-00547-RBH-BM
Plaintiff Michael J. Ferola, proceeding pro se,1 brings this action pursuant to 42 U.S.C. § 1983
against the six above-captioned Defendants, five of whom have filed motions to dismiss. See ECF Nos.
28 & 48. The matter is before the Court for review of the Report and Recommendation (“R & R”) of
United States Magistrate Judge Bristow Marchant, made in accordance with 28 U.S.C. § 636(b)(1)(B)
and Local Civil Rule 73.02 for the District of South Carolina.2 See R & R, ECF No. 52. The Magistrate
Judge recommends that the Court grant in part and deny in part the motions to dismiss. R & R at 12.
Plaintiff has filed timely objections to the R & R. See Pl.’s Objs., ECF No. 55. No Defendants have
filed objections to the R & R.
Plaintiff was a state prisoner at the time he filed his complaint. See ECF No. 1. On January 12, 2017,
Plaintiff filed a notice of change of address stating he was released from prison on December 30, 2016. See ECF No.
The Magistrate Judge reviewed Plaintiff’s complaint pursuant to the screening provisions of 28 U.S.C.
§§ 1915(e)(2) and 1915A. The Court is mindful of its duty to liberally construe the pleadings of pro se litigants. See
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). But see Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985) (“Principles requiring generous construction of pro se complaints are not, however, without limits.
Gordon directs district courts to construe pro se complaints liberally. It does not require those courts to conjure up
questions never squarely presented to them.”).
Standard of Review3
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it may accept,
reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199-200 (4th Cir. 1983).
In his verified complaint, Plaintiff alleges Defendants acted with deliberate indifference by
failing to protect him from assaults by other inmates while he was incarcerated at Ridgeland
The Magistrate Judge’s R & R sets forth the correct legal standards for a Rule 12(b)(6) motion to dismiss
and review of pro se filings. See R & R at 4-5. The Court adopts and incorporates that law by reference without
repeating it here.
The R & R contains a full summary of the procedural and factual history of this case, as well as the
applicable law pertaining to § 1983 deliberate indifference claims and supervisory liability. The Court adopts and
incorporates by reference those facts and law by reference without repeating it here.
Correctional Institution, thereby violating the Eighth Amendment’s prohibition against cruel and
unusual punishment. See Complaint [ECF No. 1] at ¶¶ 21-37. Plaintiff identifies “at least” three
assaults by Inmate Coltran Miller that allegedly occurred on July 28, 2015, September 8, 2015, and
February 5, 2016. Id. at ¶¶ 23-27, 32. Plaintiff has attached several exhibits to his complaint, including
copies of grievances that he filed with prison officials. See ECF No. 1-1. Plaintiff names six prison
officials as defendants: Michael McCall, Levern Cohen, Sgt. Michael Washington, Dennis Paterson,
D. Mervin, and Bernard McKie. Id. Five of these six Defendants—McCall, Cohen, Washington,
Paterson, and McKie—have filed motions to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). See ECF Nos. 28 & 48. The Magistrate Judge recommends granting in part and denying in
part these motions. R & R at 12. Specifically, the Magistrate Judge recommends: (1) granting the
motion to dismiss filed by Washington, Paterson, and McKie; and (2) denying the motion to dismiss
filed by McCall and Cohen. Id. Plaintiff has filed timely objections to the R & R. See Pl.’s Objs. [ECF
No. 55]. No Defendants have filed objections or a reply to Plaintiff’s objections.
Plaintiff objects to the dismissal of Paterson and McKie as defendants.5 In the R & R, the
Magistrate Judge found that Plaintiff
has failed to set forth a “plausible claim” for failure to protect against
the Defendants Washington, Paterson, or McKie. . . . Plaintiff’s only
allegations against Paterson and McKie are his general and
conclusory claim that they were aware that RCI [Ridgeland
Correctional Institution] is understaffed and that the lack of security
posed a severe risk of injury to inmates. Complaint, ¶ 37. This
allegation is not sufficient to establish the level of knowledge or
responsibility required to maintain a failure to protect claim.
Plaintiff does not specifically object to the Magistrate Judge’s recommendation that W ashington be
dismissed. See R & R at 7-8. Finding no clear error, the Court adopts this recommendation and will dismiss
W ashington from this action. See Diamond, 416 F.3d at 315; Camby, 718 F.2d at 199-200.
R & R at 7-8. In his objections, Plaintiff contends Paterson and McKie can be held liable under a theory
of supervisory liability based on Farmer v. Brennan, 511 U.S. 825 (1994), Slakan v. Porter, 737 F.2d
368 (4th Cir. 1984),6 and Wellington v. Daniels, 717 F.2d 932 (4th Cir. 1983). Pl.’s Objs. at 1-2.
Plaintiff refers to grievances that he filed with prison officials, and he claims Paterson and McKie were
on notice of the threat to his safety by virtue of these grievances.
In his objections, Plaintiff states, “In a grievance I filed over officers leaving their assigned post
a year prior to the assault[,] I placed defendant Patterson on notice of inmates being assaulted as a result
of no officer. Defendant Patterson closed out said grievance and signed it [and] thus can be held liable
under both” Farmer and Slakan. Pl.’s Objs. at 1 & n.1. Plaintiff is referring to a grievance form7 that
he signed on May 30, 2014; he attached this grievance to his complaint as Exhibit L and refers to it in
paragraph 37 of his complaint.8 See Compl. at ¶ 37; ECF No. 1-1 at 26 (Exhibit L). The grievance
describes how “officers are permitted to leave their assigned post for hours at a time,” which “makes
available chances for inmates . . . to be . . . assaulted.” Id. The grievance also contains a section
entitled “Responsible Official’s Decision and Reason” with a negative response9 and an illegible
signature; according to Plaintiff, the signature is Paterson’s.
When deciding a motion to dismiss made under Federal Rule of Civil Procedure 12(b)(6), the
The Magistrate Judge cites both Farmer and Slakan in the R & R. See R & R at 6, 10.
Specifically, this was a Step 2 grievance form filed through the Inmate Grievance System administered by
the South Carolina Department of Corrections. See ECF No. 1-1 at 26 (grievance attached to complaint); ECF No.
55-1 at 2 (same grievance attached to objections).
Plaintiff also includes this grievance form with his objections. See ECF No. 55-1 at 2 (attachment to
The response states in relevant part: “I have reviewed your grievance. You allege officers at Ridgeland
Correctional Institution are leaving their post in violation of policy.” ECF No. 1-1 at 26 (Exhibit L).
Court must accept all well-pled facts alleged in the complaint as true and draw all reasonable inferences
in the plaintiff’s favor. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir.
2009). A court must “also consider documents that are explicitly incorporated into the complaint by
reference, Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007), and those attached
to the complaint as exhibits, see Fed. R. Civ. P. 10(c).” Goines v. Valley Cmty. Servs. Bd., 822 F.3d
159, 166 (4th Cir. 2016). “ A document filed pro se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations
Because the grievance was explicitly incorporated into Plaintiff’s complaint by reference and
attached as Exhibit L, and because this Court must assume Plaintiff’s pro se allegations are true and
draw all reasonable inferences in his favor for purposes of Rule 12(b)(6), the Court finds Paterson
should not be dismissed at this time. Similar to the Magistrate Judge’s recommendation concerning
Cohen and McCall (who are not being dismissed), Plaintiff “has set forth facts to establish a ‘plausible
claim for relief’” because Paterson “had been specifically made aware by the Plaintiff through the
grievance system . . ., prior to his being assaulted on July 28, 2014, that officers were leaving their
assigned posts, but [Paterson] took [no] corrective action to resolve this problem; and that this is exactly
what led to his being assaulted by Miller.” R & R at 9-10 (citing Compl. at ¶¶ 24-26, 37); cf. id. at 10
(“Giving Plaintiff’s Complaint the liberal construction to which he is entitled as a pro se litigant, these
allegations state a claim against Cohen and McCall sufficient to survive a Rule 12 motion to dismiss
at this time.”). Significantly, the grievance was signed by Plaintiff on May 30, 2014, and allegedly
signed by Paterson on August 12, 2014—nearly a year before the first of the alleged three assaults
occurred. See ECF No. 1-1 at 26 (Exhibit L). The Court respectfully rejects the Magistrate Judge’s
recommendation to grant Paterson’s motion to dismiss.10
In his objections, Plaintiff asserts McKie can also be held liable under a theory of supervisory
liability. Pl.’s Objs. at 1-2. As with Paterson, Plaintiff contends McKie was “placed on direct notice
of the repeated assaults occur[r]ing at Ridgeland between a two year period and failed to take any
corrective action and allowed said practices to continue, and therefore can be held liable.” Id. at 2. In
support of this contention, Plaintiff refers to “a grievance filed with defendant McKie after the assault
which he denied.” Id. at 1 & n.2. Although Plaintiff has attached a copy of the grievance (which was
signed by Plaintiff on January 20, 2016, and allegedly by McKie on March 24, 2016) to his objections,
he did not attach it to his complaint or otherwise file it before the Magistrate Judge issued the R & R.11
Having reviewed Plaintiff’s complaint and all attached exhibits, the Court agrees with the
Magistrate Judge that “Plaintiff’s only allegations against . . . McKie are his general and conclusory
claim that [McKie was] aware that RCI is understaffed and that the lack of security posed a severe risk
of injury to inmates. Complaint, ¶ 37. This allegation is not sufficient to establish the level of
knowledge or responsibility required to maintain a failure to protect claim.” R & R at 8. Accordingly,
Similar to the Magistrate Judge’s recommendation regarding Cohen and M cCall, the Court likewise notes
that while Plaintiff’s allegations against Paterson “may be fairly characterized as ‘bare boned,’ discovery should flesh
out these claims, and if [Paterson] believes the evidence adduced through discovery does not support Plaintiff’s claim
against [him], [Paterson] may then file a Rule 56 motion for summary judgment at a proper time.” R & R at 10-11.
Plaintiff cannot use his objections to plead new facts not alleged in his complaint. See 28 U.S.C. § 636(b)(1)
(providing de novo review encompasses a “determination of those portions of the report or specified proposed
findings or recommendations to which objection is made”); Fed. R. Civ. P. 72(b)(2)-(3) (same); cf. United States v.
George, 971 F.2d 1113, 1118 (4th Cir. 1992) (specifying a district court has the duty “to consider all arguments . . . ,
regardless of whether they were raised before the magistrate” (emphasis added)); Backus v. Cox, No.
4:13-CV-00881-RBH, 2013 W L 5707328, at *2 (D.S.C. Oct. 18, 2013) (“Plaintiff, however, cannot use his
objections to plead new claims or cure the factual defects of his existing claims against Defendant . . . .”).
Additionally, Plaintiff has not moved to amend his complaint to incorporate the grievance as an exhibit.
the Court adopts the Magistrate Judge’s recommendation to grant McKie’s motion to dismiss.
The Court has thoroughly reviewed the entire record, including Plaintiff’s complaint and
attached exhibits, the Magistrate Judge’s R & R, and Plaintiff’s objections. The Court has conducted
a de novo review of those portions of the R & R to which Plaintiff specifically objects. For the reasons
stated in this Order, the Court respectfully ADOPTS IN PART AND REJECTS IN PART the R &
R [ECF No. 52].
Accordingly, the Court GRANTS IN PART AND DENIES IN PART the motions to dismiss
filed by Defendants McCall, Cohen, Washington, Paterson, and McKie [ECF Nos. 28 & 48]. The Court
DISMISSES Defendants Washington and McKie from this case. Defendants McCall, Cohen, Paterson,
and Mervin remain as defendants in this case. The Court recommits this case to the Magistrate Judge
for further pretrial handling.
IT IS SO ORDERED.
Florence, South Carolina
February 7, 2017
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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